First Nation and Metis groups denied effective access to justice

November 26, 2012 Fort McMurray, AB – Today the Athabasca Chipewyan First Nation (ACFN) received a decision from the Alberta Court of appeal dismissing their application for leave to appeal a decision of the Joint Review Panel to not review the adequacy of Crown consultation before deciding whether to approve Shell’s Jackpine Mine expansion project. The First Nation is extremely disappointed and is currently reviewing their options to address the lack of adequate consultation with respect to Shell’s tar sands project.

“Our rights are being overlooked and that is a truth that cannot be denied,” stated Chief Allan Adam of the ACFN. “If there is a violation of our constitutionally protected treaty rights it should be dealt with before this project is found to be in the public interest. A project of this magnitude couldn’t possibly be in the public interest if our rights have not been upheld and we have not been adequately consulted.”

During the course of the last month the ACFN have been raising multiple concerns within the Joint Review Panel hearings on Shell’s Jackpine Mine expansion citing poor consultation and direct and adverse effects on the First Nations’ ability to continue its treaty and associated aboriginal rights to hunt, fish, trap and gather. The decision today stressed that the hearings were a part of the consultation process yet the Alberta government has been absent and even referred to themselves as “strangers” to the process.

“Who has better jurisdiction to deal with our rights and the adequacy of consultation more appropriately then the bodies that grant approval? Our rights are shuffled from agency to agency with no real remedy,” stated Chief Adam. “There has been a complete devolution of the Crown’s duty to consult pushing consultation into the hands of the proponents and downgrading First Nation rights. Our people are being failed by all levels of government.”

ACFN’s challenge to Shell’s application has come on the heels of a legal suit against the oil giant for failure to meet past agreements to mitigate impacts of their current projects. Remediation and mitigation are supposed to be dealt with through Impact Benefit Agreements made with the proponents themselves, although such agreement do not have any Crown oversight or involvement. As Shell has not lived up to past agreements, ACFN was asking the Joint Review Panel to assess Crown consultation before project approval.

The ACFN hopes this ruling will at the very least push the Crown to reassess its role and obligations with respect to the duty to consult, a role they have been absent from, and a role that the Alberta Court of Appeal says the Crown has committed to undertake.